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Harris v. Dillman


September 2, 2010


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


Defendants Timothy Pappas, Peter Knoll and Kirk Andrus (collectively, the "District Attorney Defendants") moved for summary judgment on Plaintiff's remaining claims alleged in his third amended complaint. (Docket No. 59.) These Defendants also moved in the alternative for summary adjudication under Federal Rule of Civil Procedure 56(b). The District Attorney Defendants' motion was scheduled to be heard on April 19, 2010. Plaintiff filed an untimely opposition in which he requested an order "vacating [the] hearing date" and "extending the discovery cutoff" date under Federal Rule of Civil Procedure 56(f).*fn3 (Pl.'s Memo. of P. & A. in Supp. of Mot. for Order Denying Defs.' Summ. J. Mot. 7.) Defendant Barbara Dillmann separately moved for summary judgment after the District Attorney Defendants filed their motion.*fn4 (Docket No. 68.) Plaintiff did not file an opposition to Dillmann's motion.

For the reasons stated below, Plaintiff's request for a continuance under Federal Rule of Civil Procedure 56(f) will be denied and each Defendant's summary judgment motion on Plaintiff's federal claim will be granted. However, the portion of each motion seeking summary judgment on Plaintiff's state claim will not be decided because the Court declines to continue exercising supplemental jurisdiction over that claim and it will be dismissed without prejudice under 28 U.S.C. § 1367(c)(3).


Plaintiff argues the District Attorney Defendants' motion should be denied, or alternatively, that the hearing date should be vacated and the discovery cutoff date extended under Federal Rule of Civil Procedure 56(f) ("Rule 56(f)"). Plaintiff contends if his continuance request is granted, he will "complete depositions of defendants Dillman[n,] . . . Pappas, Knoll and Andrus" and "will also take the deposition of Captain John Villani of the Siskiyou Count[y] Sheriff's office." (Pl.'s Memo. of P. & A. in Supp. of Mot. for Order Denying Defs.' Mot. for Summ. J. 2:3-9.) Plaintiff argues relief under Rule 56(f) is warranted because counsel for the District Attorney Defendants "interfer[ed] with plaintiff in setting depositions and securing discoverable documents . . . ." (Id. 2:10-12.) Plaintiff also argues his Rule 56(f) request should be granted because at Gina Villani's April 1, 2010 deposition, it was "revealed that [Gina's father,] Captain John Villani of the Siskiyou County Sheriff's Department[,] was a critical link between Pappas and Andrus and Dillmann." (Id. 3:24-26.) Plaintiff contends that "Captain Villani must also be deposed." (Id. 4:6-7.)

Plaintiff's argument that he needs more discovery to oppose the motion disregards the discovery completion date in the scheduling order. The Rule 16 scheduling order issued in this case prescribes that the parties were to "complete" discovery by April 2, 2010, seventeen days prior to the scheduled April 19, 2010 hearing date for the District Attorney Defendants' summary judgment motion. The scheduling order explains: "In this context, 'completed' means that all discovery shall have been conducted so that all depositions have been taken and any disputes relative to discovery shall have been resolved by appropriate orders, if necessary, and, where discovery has been ordered, the order has been complied with or, alternatively, the time allowed for such compliance shall have expired." (Docket No. 29 at 2.) Since Plaintiff's Rule 56(f) request seeks additional discovery after the passing of the discovery completion date, amendment of the Rule 16 scheduling order is a prerequisite to granting Plaintiff's Rule 56(f) request. See In re Imperial Credit Indus., Inc. Secs. Lit., 252 F. Supp. 2d 1005, 1017 (C.D. Cal. 2003) (stating that "[t]o grant Plaintiffs' Rule 56(f) request would . . . require the Court to extend the discovery cut-off in this action and thus modify the scheduling order").

Under Rule 16(b), "[t]he district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension." Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). Since Rule 16(b)'s good cause standard focuses on the diligence of the party seeking amendment, "[i]f th[e] party was not diligent, the inquiry should end" and the request for modification of the scheduling order denied. Id.

Therefore, before deciding whether to consider the merits of Plaintiff's Rule 56(f) motion, the issue is reached whether Plaintiff has satisfied his burden of showing that "good cause" justifies amending the discovery completion date prescribed in the Rule 16 scheduling order. A district court is authorized to decline considering a Rule 56(f) request, in the situation faced here, where Plaintiff "should have [first] sought an extension of the discovery cutoff date . . . but did not do so." Saavedra v. Murphy Oil U.S.A., Inc., 930 F.2d 1104, 1107 (5th Cir. 1991)).

Plaintiff has not adequately explained why he did not complete the discovery he now seeks before the discovery completion date. Although Plaintiff argues that the District Attorney Defendants' counsel obstructed Plaintiff's discovery efforts, Plaintiff fails to explain why he did not timely litigate this referenced discovery dispute before the Magistrate Judge as required by the scheduling order and the Eastern District's Local Rule 302(c)(1). The district court is not required to consider a discovery matter which Plaintiff "failed to [timely] prosecute . . . before the magistrate judge as required by E.D. Cal. Local Rule [302(c)] and the court's [scheduling] order." Freeman v. Allstate Life Ins. Co., 253 F.3d 533, 537 (9th Cir. 2001). Plaintiff, therefore, has not shown that good cause justifies amending the discovery completion provision in the scheduling order.

Moreover, even if the merits of Plaintiff's Rule 56(f) request were decided, Plaintiff has not demonstrated he is entitled to relief under Rule 56(f). Rule 56(f) provides that "[i]f a party opposing [summary judgment] . . . shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order." Fed. R. Civ. P. 56(f). Therefore, to receive relief under Rule 56(f), the moving party "must show (1) that [he] ha[s] set forth in affidavit form the specific facts that [he] hope[s] to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are 'essential' to resist the summary judgment motion." State of Cal. ex. rel. Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1991).

Plaintiff has neither identified "the specific facts [he] hopes to elicit from further discovery", nor how the "sought-after facts are essential to resist the summary judgment motion" or demonstrated that such facts "exist." Id. The transcript from Gina Villani's deposition provided by Plaintiff does not suggest that John Villani, if deposed, would provide evidence establishing a conspiracy among the Defendants. Nor has Plaintiff explained why the other discovery he seeks is essential to his opposition to the summary judgment motion.

For the stated reasons, Plaintiff's request for an extension of the discovery completion date and for relief under Rule 56(f) is denied.


A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If this burden is satisfied, "the non-moving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotations and citation omitted) (emphasis in original). This requires that the non-moving party "come forward with facts, and not allegations, [that] controvert the moving party's case." Town House, Inc. v. Paulino, 381 F.2d 811, 814 (9th Cir. 1967) (citation omitted). All reasonable inferences that can be drawn from the facts provided "must be drawn in favor of the non-moving party." Bryan v. McPherson, 590 F.3d 767, 772 (9th Cir. 2009).

The Eastern District's Local Rule 260(b) further requires that "[a]ny party opposing a motion for summary judgment . . . [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial." E.D. Cal. R. 260(b). "If the moving party's statement of facts are not controverted in this manner, the Court may assume the facts as claimed by the moving party are admitted to exist without controversy." Farrakhan v. Gregoire, 590 F.3d 989, 1002 (9th Cir. 2010) (quoting Beard v. Banks, 548 U.S. 521, 527 (2006)) (finding that a party opposing summary judgment who "fail[s] [to] specifically challenge the facts identified in the [moving party's] statement of undisputed facts . . . is deemed to have admitted the validity of [those] facts . . . .").


Plaintiff Edward Harris was the principal of Weed High School in the Siskiyou Union High School District from 1999 through 2001. (Dillmann Statement of Undisputed Facts ("SUF") ¶ 3.) In July 2001, the Big Springs Union Elementary School District hired Plaintiff as its district superintendent and principal of the Big Springs Elementary School. (Id. ¶ 9.)

Defendant Peter Knoll was the District Attorney for Siskiyou County from January 1991 until December 30, 2004, when he retired. (District Attorney Defs.' SUF ¶¶ 1-2.) Defendant Timothy Pappas was the Assistant District Attorney for Siskiyou County from December 1, 1999 until November 1, 2004. (Id. ¶ 22.) Defendant Kirk Andrus was appointed Siskiyou County District Attorney on April 11, 2005. (Id. ¶¶ 10-11.) Defendant Barbara Dillmann served as the superintendent of the Siskiyou County Office of Education from January 1999 until January 2007. (Dillmann SUF ¶ 1.)

On July 31, 2001, the Siskiyou County District Attorney's Office filed a misdemeanor complaint against Plaintiff in connection with allegations made by Gina Villani that Plaintiff had sent her "sexually charged" emails while she was employed by the Big Springs Elementary School. (Id. ¶ 18.) Subsequently, on April 9, 2002, the Siskiyou County District Attorney's Office filed a felony complaint against Plaintiff, which added a "while collar" charge to the allegations in the misdemeanor complaint. (Id. SUF ¶ 19.) This felony complaint superseded the misdemeanor complaint. (Pappas Decl. ¶ 32.) Defendant Assistant District Attorney Pappas declares his "prosecution of the criminal felony complaint against [Plaintiff] . . . was based solely on the investigative reports provided to [him] by the District Attorney investigators assigned to the case." (Pappas Decl. ¶ 35.) However, Defendant District Attorney Knoll decided to "dismiss the criminal action [against Plaintiff] because of a civil compromise [Plaintiff] . . . had entered into with the Big Springs Union Elementary School District." (Knoll Decl. ¶ 29.)

Subsequently, the Willow Creek Elementary School District hired Plaintiff in September 2002 to be the district superintendent and principal of the Willow Creek Elementary School. (Dillmann SUF ¶ 28.) Thereafter, in February 2003, after an investigation into allegations of misconduct, the California Commission on Teacher Credentialing recommended that Plaintiff's educational credentials be revoked. (Dillmann SUF ¶ 29.) On January 30, 2004, the California Commission on Teaching Credentialing filed an "amended accusation" against Plaintiff, alleging that Plaintiff was unfit to be an educator because he had "engaged in immoral conduct, . . . unprofessional conduct, has committed acts involving moral turpitude, and has demonstrated evident unfitness for service . . . ." (Kelley Decl. Ex. E.)

In May 2004, Plaintiff entered into a consent determination with the California Commission on Teacher Credentialing. (Dillmann SUF ¶ 31.) Under the consent determination, Plaintiff's educational credentials were suspended effective July 1, 2005, and Plaintiff was precluded from seeking renewal at any time prior to July 1, 2007. (Id.) The consent determination further provided that if Plaintiff sought reinstatement of his credentials after July 1, 2007, all of the allegations alleged against him would be deemed true. (Id.) Thereafter, in June 2004, Plaintiff and the Willow Creek Elementary School District entered into a new employment contract and Plaintiff's title was changed from Superintendent to Chief Administrative Officer. (Dillmann SUF ¶ 32.)

Defendant Dillmann, however, was "concerned [that] [Plaintiff] could not occupy the position of Chief Administrative Officer for the Willow Creek School District following the suspension of his credentials." (Id. SUF ¶ 33.) On November 18, 2004, Dillmann filed a writ of mandate against the Willow Creek School District, challenging Harris' employment. (Id. ¶ 34.) Harris and the Willow Creek School District then filed cross-complaints against Dillmann, alleging a claim of interference with contractual relations. (Id. ¶ 35.) This litigation, however, was resolved when Harris, Dillmann and the Governing Board of the Willow Creek School District entered into a settlement and release agreement in March 2006. (Id. SUF ¶ 42.)

Plaintiff subsequently resigned from his position with the Willow Creek School District. (Id. ¶ 77.)

Defendant Dillmann met with the Siskiyou County Grand Jury Education Committee on October 2, 2005, at their request and answered their questions. (Id. ¶¶ 39-40.) In June 2006, the Siskiyou County Grand Jury issued a report, in which it found that Willow Creek Elementary School submitted false attendance information for the 2004 to 2005 school year. (Id. SUF ¶ 36.) The Grand Jury requested that then District Attorney Defendant Andrus review the falsification of attendance records with a criminal grand jury to see if criminal prosecution was warranted. (District Attorney Defs.' SUF ¶¶ 141, 143.) Andrus responded to the Grand Jury in writing on November 9, 2006, concluding that "prosecution was not warranted and the District Attorney's Office would do nothing further." (Id. ¶¶ 146, 155.)

In 2007, Susan Pritchett, the Director of the Siskiyou-Modoc Regional Department of Child Support Services, was looking to employ a Child Support Specialist. (Id. ¶¶ 167-68.) Plaintiff applied for the position and was interviewed by Pritchett. (Id. ¶¶ 170-71.) On November 21, 2007, Robert Dunn, the Chief Investigator in the District Attorney's Office, performed a "simple employment background check" on Plaintiff at the request of the Siskiyou Modoc Regional Department of Child Support Services. (Id. ¶ 174.) Pritchett then contacted Andrus and requested that he perform a more formal background check. (Id. ¶ 176.) Andrus sent an email to Pritchett advising her that the District Attorney's Office would decline to perform any further background investigation on Plaintiff. (Id. ¶ 178.) Upon receiving Andrus' email, Pritchett forwarded it to Ann Waite. (Id. ¶ 181.) Based upon information received from Ann Waite, Pritchett decided not to hire Plaintiff. (Id. ¶ 183.) Pritchett sent Plaintiff a letter dated December 12, 2007, informing him of her decision not to hire him. (Id. ¶ 188.)


A. Plaintiff's First Claim Alleged Under the First Amendment and 42 U.S.C. § 1983

The District Attorney Defendants argue they are entitled to summary judgment on Plaintiff's federal claim, in which Plaintiff alleges Defendants conspired to retaliate against him for speaking on matters of public concern. These Defendants argue there is no evidence of a conspiracy and, absent proof of a conspiracy, the statute of limitations bars this claim. Defendant Dillmann also argues she is entitled to summary judgment on this claim since Plaintiff has not demonstrated a conspiracy or that Dillmann "engaged in any act to stifle Plaintiff's protected speech." (Dillmann Mot. for Summ. J. 15:1-2.)

Plaintiff alleges in this claim that he "publicly announced his intention to run against Dillman[n] for the office of Superintendent in the . . . 2002 election" and that he "publicly expressed his opposition to Dillman[n]'s consortium." (Third Amended Compl. ("TAC") ¶ 14.) Plaintiff further alleges that through this activity, he "was exercising the right to free expression on a matter of public concern under the First Amendment to the United States Constitution." (Id. ¶ 40.) Plaintiff also alleges that "Dillman[n] met with Knoll and Pappas . . . before the 2002 election" and Knoll and Pappas "committed to Dillman[n] [that] they would use the Siskiyou County District Attorney's office to silence [his] opposition to Dillman[n]'s consortium and thwart his election campaign." (Id. ¶ 15.)

Plaintiff also alleges that "Defendants Pappas, Knoll, Andrus and Dillman[n] all acted collectively and individually . . . and in a . . . secret conspiracy with one another to . . . punish plaintiff for exercising his right to free speech in opposing the Dillman[n] consortium proposal and to discourage plaintiff from running for election" against Dillmann. (Id. ¶ 41.) Plaintiff alleges that "the Dillman[n] civil complaint, . . . Andrus['] . . . cooperation in the frivolous Grand Jury complaint of 2006 . . . and Andrus' deliberate interference with plaintiff's prospective employment in December 2007 were all products of the agreement to interfere with plaintiff's rights under the First and Fourteenth Amendments."*fn5 (Id. ¶ 42.) Plaintiff's federal claim is premised on allegations that Defendants violated his First Amendment rights by conspiring to retaliate against him for his public opposition to Dillmann's educational consortium and for his decision to run against Dillmann in an election.

"A civil conspiracy is a combination of two or more persons who, by some concerted action, intend to accomplish some unlawful objective for the purpose of harming another which results in damage." Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999) (quoting Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330, 1343 (9th Cir. 1990)). "To prove a civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose or a common design and understanding, or a meeting of the minds in an unlawful arrangement. To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy." Id. (quotations and citations omitted).

Defendants Knoll, Pappas, Andrus and Dillmann have each provided a declaration that rebuts Plaintiff's allegations of the existence of a conspiracy. Defendants, therefore, have shifted the burden to Plaintiff to come forward with admissible evidence from which the existence of a conspiracy could reasonably be inferred. Plaintiff, however, has presented no evidence from which it can reasonably be inferred that there was a conspiracy among the Defendants to retaliate against him for any protected First Amendment activity. Therefore, each Defendant's motion for summary judgment on this claim is GRANTED.

B. Supplemental Jurisdiction Over Plaintiff's Remaining State Law Claim

Since only Plaintiff's state claim for interference with prospective advantage remains, the Court may consider whether to continue exercising supplemental jurisdiction over this claim. See Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc) (suggesting that a district court may, but need not, sua sponte decide whether to continue exercising supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) after all federal law claims have been resolved).

Under 28 U.S.C. § 1367(c)(3), a district court "may decline to exercise supplemental jurisdiction over a [state law] claim" when "all claims over which it has original jurisdiction" have been dismissed. "While discretion to decline to exercise supplemental jurisdiction over state law claims is triggered by the presence of one of the conditions in § 1367(c), it is informed by the . . . values of economy, convenience, fairness, and comity." Acri, 114 F.3d at 1001 (quotations omitted). "In the usual case in which all federal-law claims are eliminated before trial, the balance of [the] factors to be considered . . . point toward declining to exercise jurisdiction over the remaining state-law claims." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). "Further, primary responsibility for developing and applying state law rests with the state courts." Curiel v. Barclays Capital Real Estate Inc., No. S-09-3074 FCD/KJM, 2010 WL 729499, at *1 (E.D. Cal. Mar. 2, 2010); see also Gibbs, 282 U.S. at 726 (stating that "[n]eedless decisions of state law should be avoided").

Although this case is scheduled for trial on November 9, 2010, an earlier filed case is scheduled for trial at the same time, and that case will proceed to trial before this case. In light of the court's congested trial calendar, it is unclear when this case could be tried. Moreover, "[t]here is no prevailing reason for this court to maintain jurisdiction to preserve judicial economy." Meza v. Matrix Serv., No. CIV. 2:09-3106 WBS JFM, 2010 WL 366623, at *4 (E.D. Cal. Jan. 26, 2010); see also Otto v. Heckler, 802 F.2d 337, 338 (9th Cir. Cir. 1986) (stating that "[t]he district court, of course, has the discretion to determine whether its investment of judicial energy justifies retention of jurisdiction").

Therefore, the Court declines to continue exercising supplemental jurisdiction over Plaintiff's remaining state claim, and that claim will be dismissed without prejudice under 28 U.S.C. § 1367(c)(3).


For the reasons stated above, each Defendant's motion for summary judgment on Plaintiff's federal claim is GRANTED and Plaintiff's remaining state claim is dismissed without prejudice under 28 U.S.C. § 1367(c)(3).

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